| Share repurchase refers to the behavior of a company obtaining its own issued shares by paying a consideration.In order to give full play to the positive role of share repurchase in the operation of the company,in 2018,our country revised the restriction system for the reasons for share repurchase stipulated in Article 142 of the "Company Law",adding two exceptions to allow the company’s share repurchase.In order to study and discover the problems in the judicial application of Article142 of the "Company Law" of the restriction system on the reasons for share repurchase,this paper collected a total of 378 judgment documents from China Judgment Documents Online,and finally screened out 189 valid documents.Based on the statistics of 189 cases on the Judgment Documents Online,it can be found that most of the reasons for the company to carry out share repurchase in judicial practice are non-statutory repurchase situations,and the proportion of statutory situations is relatively small.Even though the amendment of the Company Law in 2018 added two statutory grounds,the cases in practice still did not reflect the new grounds.In addition,in judicial practice,requests for share repurchase for illegal reasons frequently occur.Because different judges have different understandings of the provisions,judges not only have different judgments on the reasons for non-statutory share repurchase,but also have different understandings of statutory repurchase situations.Therefore,the court needs to accurately understand the nature and significance of the system and explore the legislative purpose of the system when adjudicating a share repurchase case.First of all,the court needs to clarify the judicial application path of the statutory share repurchase.It is not appropriate to take capital reduction as a precondition to support the company’s share repurchase,and it is appropriate to include the employee resignation and retiring share repurchase conditions agreed upon by the company and employees into the the scope of the statutory reason for“employee stock ownership plan and equity incentive”.The court should expand the interpretation of the statutory share repurchase situation of merger and division from the point of “it will lead to major changes in the company’s asset structure”.At the same time,when the plaintiff is an investor,the court should reasonably allocate the burden of proof.Second,the court needs to clarify the normative nature of Article 142 of the Company Law and carefully determine the validity of the repurchase agreement.In addition,the court should distinguish between the effect of the company’s internal resolution and external repurchase.Finally,the court should accurately grasp the legislative purpose of the share repurchase reason limitation system,determine that a limited liability company should apply the share repurchase reason limitation system,and cautiously determine the validity of the act of accepting its own shares as the subject of pledge. |
